As we brace for rising Covid infection numbers in New Jersey and a new strain of this virus, employers must make sure that they have formal protocols in place to address Covid-19 safety in the workplace. Equally important is to ensure that your managers are trained on how to handle complaints from employees regarding their perceived deficiency of Covid healthy and safety protections at work.
New trends in litigation indicate that employees are filing whistleblower and retaliation lawsuits based upon the following fact pattern: the employee complained that the company was not following, implementing, or enforcing reasonable Covid-19 safety protocols in the workplace and was retaliated against (demoted, suspended, terminated) because of their complaints. Employers and manager who fail to discuss the employees concerns or who refuse to implement reasonable workplace safety protections will not only violate OSHA’s catch-all rule that requires employers to provide a safe and healthy workplace but will also potentially be liable for having retaliated against an employee for raising these complaints. Note that the employee need not have complained outside the workplace, a complaint to their manager or the owner will be sufficient to trigger whistleblower liability.
Here are some things for an employer to consider:
1. Have a written Covid-19 safety protocol identifying expectations of employees, such as masking, use of PPE, social distancing, hygiene and sanitizing workspaces, etc.; include protections that the employer will implement in the workplace such as what will be provided, cleaning protocols etc.;
2. Have written policies regarding when and under what circumstances employees must provide notice to the employer of potential or suspected exposure to Covid and how that notice will be handled by the company;
3. Explain what your quarantine policy and paid/unpaid leave policy will be relating to employee leave required because of an office contamination;
4. Explain quarantine and paid/unpaid leave rules for an employee’s voluntary travel outside the State;
5. Explain the consequences of non-compliance with these policies.
In addition to these written policies, you must also train your managers on how to handle an employee who complains about an alleged OSHA or CDC violation at the workplace. This scenario should be treated as you would an employee request for accommodations, i.e. the company should engage in an interactive discussion with the employee to better understand the concerns they are raising, to explain how the request has been addressed or will be addressed, or why it is not reasonably possible for the employer to implement the change requested by the employee.
You will also find yourself engaging in this same interactive discussion with an employee who wishes to work from home. This is a very fact sensitive analysis that considers the employee’s actual job, the nature of the company business, and whether the job can reasonably be done remotely. When considering whether to allow an employee to work from home, it is imperative that you make sure that you have cybersecurity protocols and safeguards in place to protect client and patient data, require that the employee only work on a company issued device, and that they do not download any company information, including client/patient data, including contact information, on their personal devices.
The Bottomline: Have an organized, structured protocol in place for workplace hygiene, quarantine rules, notice of possible infection, and paid/unpaid leave that is in place before your employee raises this issue as a violation of NJ Executive Order 192, OSHA or the CDC guidelines.